Abstract

The current international asylum regime recognizes only persecuted persons as rightful asylum applicants. The Geneva Convention and Protocol enumerate specific grounds upon which persecution is recognized. Claimants who cannot demonstrate a real risk of persecution based on one of the recognized grounds are unlikely to be granted asylum. This paper aims to relate real-world practices to normative theories, asking whether the Convention’s restricted preference towards persecuted persons is normatively justified. I intend to show that the justifications of the persecution criterion also apply to grounds currently lacking recognition. My main concern will be persecution on the grounds of gender.The first section introduces the dominant standpoints in theories of asylum, which give different answers to the question of who should be granted asylum, based on different normative considerations. Humanitarian theories base their claims on the factual neediness of asylum-seekers, holding that whoever is in grave danger of harm or deprivation should be granted asylum. Political theories base their justifications on conceptions of legitimacy and membership, holding that whoever has been denied membership in their original state should be granted asylum. Under political theories, Matthew Price’s theory will be discussed, which provides a normative justification of the currently recognized persecution criterion. The second section provides a descriptive definition of persecution based on Kuosmanen (2014), and evaluates the normative relevance of the different elements of this definition based on the theories presented previously. The third section is devoted to the examination of the normative justifiability of the nexus clause’s exclusive list of the bases (grounds) upon which persons might be persecuted. The section argues that while the clause does not recognize that persecution might be based on gender, in fact many women experience harms based on gender that fulfil all the normatively relevant definitive conditions constituting persecution. The conclusion shows that although the current law’s preferences towards the persecuted are justifiable, the nexus clause’s limiting enumeration of grounds is not. This applies especially to the exclusion of gender as grounds for granting asylum.Article first published online: 21 DEC 2015

Highlights

  • The current international asylum regime, outlined in the Geneva Convention and Protocol established by the UNHCR in 1951 and 1967, reads: The term ‘refugee’ shall apply to any person who: [...] owing to a wellfounded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable, or owing to such fear, is unwilling to avail himself of the protection of that country (Article 1/A/2); No Contracting State shall expel or return (‘refouler’) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion (Article 33/1)

  • Is it justifiable that victims or prospective victims of harm, in order to be admitted, have to suffer harm as a result of “persecution”, and have to demonstrate that this persecution is based on certain attributes specified in the nexus clause? This section will give an overview of dominant normative positions, and will show that the persecution criterion is justifiable, if one does not subscribe to a humanitarian theory of asylum

  • The nexus clause attached to the persecution criterion is not justifiable in its current form

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Summary

Introduction

The current international asylum regime, outlined in the Geneva Convention and Protocol established by the UNHCR in 1951 and 1967, reads: The term ‘refugee’ shall apply to any person who: [...] owing to a wellfounded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable, or owing to such fear, is unwilling to avail himself of the protection of that country (Article 1/A/2); No Contracting State shall expel or return (‘refouler’) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion (Article 33/1).. It is not impossible for states to grant asylum to seekers based on other grounds not listed in the nexus clause: depending on the receiving state’s individual assessment, gender may be interpreted under the social group or on the political opinion ground. The section argues that while the nexus clause does not recognize that persecution might be based on gender, many women experience harms based on gender that demonstrate all the normatively relevant definitive conditions constituting persecution. The conclusion shows that the current law’s preferences towards the persecuted are justifiable, the nexus clause’s limiting enumeration of grounds is not This applies especially to the exclusion of gender as a ground for granting asylum

Who should be granted asylum?
What does the term “persecution” mean?
Conclusion
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